US Lawmakers Send Obama Administration Letter on Arms Treaty Negotiations

During the month of July, negotiations will be under way in New York over a proposed arms trade treaty (links roundup at Opinio Juris).  Meanwhile, note the release of a letter from some 130 US lawmakers to the Obama administration warning it against any weakening of US sovereign rights or individual 2nd Amendment rights in its participation in the July negotiations. The letter’s main concerns:

  • No dilution of US Constitutional protections under the 2nd Amendment (or other existing US laws protecting gun rights, whether at the state or federal level);
  • recognition of an individual right of personal self-defense;
  • no dilution of what the signatories regard as US national security and foreign policy interests, particularly transfers to Taiwan and Israel;
  • no treaty recognition of terrorist right to weapons, including through the language of “resistance to foreign occupation”;
  • no creation or recognition of jurisdiction of the ICC over treaty signatories;
  • no damage to US economic interests through such vehicles as new regulatory regimes imposing compliance burdens on businesses or other mechanisms, direct or indirect, or export control regimes different from what the US does or would otherwise do;
  • reservations and understandings, should the US join the treaty, that the US is already in compliance with the treaty and that no changes to US policy or procedure are required, that the treaty cannot alter the Bill of Rights or the allocation of power in the US federal system, and that the treaty cannot shift authority from US agencies to any international body;
  • asserts (but also demands recognition) that the treaty is non-self-executing and requires legislation to implement; and
  • demands that should any of the above legal-policy requirements not go the US’s way in negotiations (which would seem, well, pretty likely), the US should “break consensus and reject the treaty.”

That’s quite a list. Since I’m all in favor of it and probably more to ensure that such a document cannot be leveraged into US domestic litigation, I should point out that one of our esteemed European commenters here at Volokh Conspiracy, as well as at the international law blog Opinio Juris, has asked – quite sensibly – what on earth it could mean to participate in a treaty negotiation in which you have stated in advance that the treaty will provide that you cannot possibly be violation of it, ever, or ever be required to alter your behavior? Good question, and it seems to me precisely the reason why the Obama administration seriously erred in deciding to participate in this forum. If the negotiation is successful for most countries, it will likely End in Tears with respect to the US. Why on earth would it be in anyone’s interests – those who support the treaty and those, like me, who don’t? – for the US to be involved? It just muddies the waters.

Well, over at Opinio Juris I discuss that question – at length – with reference to the general negotiating problem of so-called “consensus” negotiations at the UN and the US as hegemonic actor. It’s fairly academic and political-sciency, so be warned, and the discussion is drawn from my new, quite unacademic book on US-UN relations, Living With the UN: American Responsibilities and International Order, available on Kindle here.

But I would certainly welcome the thoughts of Co-Conspirators and knowledgeable commenters on the treaty negotiations in New York, particularly those who follow 2nd Amendment issues closely. I’d particularly like to have a sense of how serious a threat the negotiations are with respect to gun rights – particularly from folks who follow this stuff seriously. While I’m at it, I’d certainly welcome any expert comment on a statement made at the close of the letter – the Constitution, the letter says, “gives the regulation of international commerce to Congress alone.” With respect to international commerce, is that true – or does the fact that it is international automatically give the Executive some role under its foreign affairs powers?